PIANFORINI v. KELTIES BUM STEER (1999)

In a negligence action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Westchester County (Rosato, J.), entered December 18, 1997, which, upon the denial of its motion pursuant to CPLR 4401, made at the close of evidence, for judgment in its favor as a matter of law, and upon a jury verdict finding it to be 100% at fault in the happening of the accident, is in favor of the plaintiff and against it in the principal sum of $314,077.22.

ORDERED that the judgment is reversed, on the law, with costs, the defendant's motion for judgment in its favor as a matter of law is granted, and the complaint is dismissed.

The plaintiff slipped and fell at the defendant restaurant's salad bar.   The plaintiff testified that she had observed a few pieces of lettuce on the floor as she approached the salad bar, and that, moments later, after selecting her food and taking salad dressing from the other end of the salad bar, she slipped and fell as she returned to her table.   The plaintiff admitted that she did not see, nor did she know, what caused her to fall.   Similarly, she did not describe the condition of the floor's surface where she fell, nor did she testify that the lettuce she had observed only moments earlier was the substance upon which she had slipped.   Indeed, the plaintiff did not even testify that she fell in the same area of the floor where she had seen the pieces of lettuce.   The plaintiff simply stated that her foot slid on “something”.

 In order to establish a prima facie case of negligence and hold a defendant liable for an allegedly dangerous condition, the plaintiff is required to prove that the defendant either created or had actual or constructive notice of the allegedly dangerous condition (see, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795;   Albano v. City of New York, 250 A.D.2d 555, 672 N.Y.S.2d 413;  Golding v. Powell & Dempsey, 247 A.D.2d 510, 669 N.Y.S.2d 323).  “ To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  see also, Golding v. Powell & Dempsey, supra;  Davis v. Supermarkets Gen. Corp., 205 A.D.2d 730, 731, 613 N.Y.S.2d 701).   Actual notice may be found where the defendant created the condition, or was in fact aware of its existence prior to the accident (see, Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 472 N.Y.S.2d 368, affd. 64 N.Y.2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612).

 Here there was no evidence as to what the plaintiff slipped on, and no evidence that the defendant created a condition which caused her to fall.   The evidence here was consistent with a finding that someone dropped something on the floor just before the plaintiff fell.   Thus, any finding that the substance upon which she fell had been on the floor for any appreciable period of time sufficient to charge the defendant with constructive notice would be mere speculation (see, Rojas v. Supermarkets Gen. Corp., 238 A.D.2d 393, 656 N.Y.S.2d 346, citing Anderson v. Klein's Foods, 139 A.D.2d 904, 905, 527 N.Y.S.2d 897, affd. 73 N.Y.2d 835, 537 N.Y.S.2d 481, 534 N.E.2d 319).   The defendant established its entitlement to summary judgment as a matter of law, and the plaintiff failed to raise an issue of fact in opposition to the motion.   Therefore, the trial court erred in failing to grant the defendant's motion for summary judgment dismissing the complaint (see, Rojas v. Supermarkets Gen. Corp., supra;  cf., Napolitano v. Dhingra, 249 A.D.2d 523, 672 N.Y.S.2d 369;  Farrukh v. Board of Educ. of City of N.Y., 227 A.D.2d 440, 643 N.Y.S.2d 118).

In light of the foregoing, we need not reach the defendant's remaining contentions.

MEMORANDUM BY THE COURT.